R v McKinnon - [2006] QCA 16

SUPREME COURT OF QUEENSLAND

CITATION:

R v McKinnon [2006] QCA 16

PARTIES:

R
v
McKINNON, Jeffrey David
(applicant)

FILE NO/S:

CA No 258 of 2005
DC No 655 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension (Sentence & Conviction)

ORIGINATING COURT:

District Court at Brisbane

DELIVERED EX TEMPORE ON:

9 February 2006

DELIVERED AT:

Brisbane

HEARING DATE:

9 February 2006

JUDGES:

McMurdo P, McPherson JA and Muir J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for extension of time within which to appeal refused

2. Application under r 69 Criminal Practice Rules 1999 (Qld) refused

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – GENERAL PRINCIPLES - where applicant pleaded guilty to one count of retaliation against a judicial officer and two counts of serious assault – where applicant sentenced to three and a half months' imprisonment and two years' probation and required to undertake anger management course – where applicant filed application for leave to appeal against that sentence but abandoned that application, with effect that the application was taken to be refused by Court - where applicant claimed that he abandoned previous application because he thought his solicitor was handling his appeal – where applicant now applies for extension of time in which to appeal against both sentence and conviction – where applicant wishes to set aside his pleas of guilty but has not demonstrated any reason to set aside these pleas – whether applicant can set aside pleas of guilty made in open court and when legally represented - whether applicant should be granted extension of time in which to appeal against conviction

CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY - where applicant wishes to apply for extension of time in which to appeal against sentence - where applicant claims that his sentence was manifestly excessive - whether applicant's sentence was manifestly excessive in all the circumstances - whether in the interests of justice this Court should set aside the notice of abandonment and reinstate previous application in accordance with r 69 Criminal Practice Rules 1999 (Qld) - whether applicant should be granted extension of time in which to appeal against sentence

Criminal Practice Rules 1999 (Qld), r 69

COUNSEL:

The applicant appeared on his own behalf
B G Campbell for the respondent

SOLICITORS:

The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent

THE PRESIDENT: The applicant pleaded guilty in the District Court to one count of retaliation against a judicial officer and two counts of serious assault. On 24 June 2004 a pre-sentence report was ordered and his sentence was adjourned. On 12 October 2004 he was sentenced to three and a half months imprisonment and two years probation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v McKinnon

Details

AGLC: R v McKinnon [2006] QCA 16
Case: [2006] QCA 16
Decision Date: 9 February 2006

CaseChat Overview and Summary

The case of R v McKinnon concerns an appeal against conviction and sentence. McKinnon pleaded guilty to one count of retaliation against a judicial officer and two counts of serious assault. He was sentenced to three and a half months' imprisonment and two years' probation, and was required to undertake an anger management course. McKinnon initially filed an application for leave to appeal against his sentence but later abandoned it. He now applies for an extension of time to appeal against both his conviction and sentence.

The legal issues before the court were whether McKinnon could set aside his pleas of guilty made in open court and when legally represented, and whether he should be granted an extension of time in which to appeal against his conviction. The court was also required to determine whether McKinnon's sentence was manifestly excessive and whether it was in the interests of justice to set aside the notice of abandonment and reinstate the previous application for leave to appeal. McKinnon argued that he abandoned his previous application because he thought his solicitor was handling his appeal.

The court considered McKinnon's arguments and found that he had not demonstrated any reason to set aside his pleas of guilty. The court held that it was not in the interests of justice to set aside the notice of abandonment and reinstate the previous application for leave to appeal. The court also found that McKinnon's sentence was not manifestly excessive in all the circumstances. The court therefore refused McKinnon's application for an extension of time within which to appeal against both his conviction and sentence.

Orders

Orders of the court

1. Application for extension of time within which to appeal refused

2. Application under r 69 Criminal Practice Rules 1999 (Qld) refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v McKinnon [2006] QCA 16
PARTIES:	R v McKINNON, Jeffrey David (applicant)
FILE NO/S:	CA No 258 of 2005 DC No 655 of 2004
DIVISION:	Court of Appeal
PROCEEDING:	Application for Extension (Sentence & Conviction)
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	9 February 2006
DELIVERED AT:	Brisbane
HEARING DATE:	9 February 2006
JUDGES:	McMurdo P, McPherson JA and Muir J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDER:	1. Application for extension of time within which to appeal refused *2. Application under r 69 Criminal Practice Rules* 1999 (Qld) refused**
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST CONVICTION RECORDED ON PLEA OF GUILTY – GENERAL PRINCIPLES - where applicant pleaded guilty to one count of retaliation against a judicial officer and two counts of serious assault – where applicant sentenced to three and a half months' imprisonment and two years' probation and required to undertake anger management course – where applicant filed application for leave to appeal against that sentence but abandoned that application, with effect that the application was taken to be refused by Court - where applicant claimed that he abandoned previous application because he thought his solicitor was handling his appeal – where applicant now applies for extension of time in which to appeal against both sentence and conviction – where applicant wishes to set aside his pleas of guilty but has not demonstrated any reason to set aside these pleas – whether applicant can set aside pleas of guilty made in open court and when legally represented - whether applicant should be granted extension of time in which to appeal against conviction CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION – APPEAL AGAINST SENTENCE – APPEAL BY CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED – GENERALLY - where applicant wishes to apply for extension of time in which to appeal against sentence - where applicant claims that his sentence was manifestly excessive - whether applicant's sentence was manifestly excessive in all the circumstances - whether in the interests of justice this Court should set aside the notice of abandonment and reinstate previous application in accordance with r 69 Criminal Practice Rules 1999 (Qld) - whether applicant should be granted extension of time in which to appeal against sentence Criminal Practice Rules 1999 (Qld), r 69
COUNSEL:	The applicant appeared on his own behalf B G Campbell for the respondent
SOLICITORS:	The applicant appeared on his own behalf Director of Public Prosecutions (Queensland) for the respondent